PREMLATA DEONATH KURMI, MUMBAI V. ASST CIT 18(2), MUMBAI

ITA 1397/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88628 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 04-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 19-02-2013
• Court: TRIBUNAL
• Department Lawyers: B V JHAVERI SHRI PREMANAND J
• Keywords: Bonafide belief; Question of law; Surrender of tenancy right; Revised return
• Section: 143(3); 142(1); 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI VK;DJ VIHYH; VF/KDJ.K] LH U;K;IHB EQACBZ BEFORE SHRI VIJAY PAL RAO , JUDICIAL MEMBER AND SHRI RAJENDRA , ACCOUNTANT MEMBER JH FOT; IKY JKO] U;KF;D LNL; ,OA JH JKTSUNZ ] YS[KK LNL; DS LE{K ITA NO. 1397/MUM/2013 ASSESSMENT YEAR: - 2008 - 09 PREMLATA DEONATH KURMI A/302, KOHINOOR TOWER, SENAPATI BAGPAT MARG, DADAR WEST MUMBAI 4000025. VS.` THE ASSISTANT COMMISSIONER OF INCOME TAX - CIRCLE 18(2), ROOM NO. 115, PIRAMAL CHAMBERS, LALBAUG, MUMBAI - 400012. APPELLANT / RESPONDENT ORDER PER VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 14.12.2012 ARISING FROM PENALTY ORDER PASSED U/S 271(1)(C) OF THE INCOME TAX ACT FOR THE A.Y. 2008 - 09. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS IN THIS APPEAL: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE COMMISSIONER (APPEALS) HAS ERRED IN: A. CONFIRMING THE ACTION OF THE LEARNED ASSESSING OFFICER AND LEVYING OF PENALTY U/S 271 (1) (C) OF RS.10,87,6801 - . B. CONFIRMING THE ACTION OF THE LEARNED ASSESSING OFFICER WITHOUT APPRECIATING THE FACT THAT THE ASSESSING OFFICER HAS FAILED TO RECORD SPECIFIC SATISFACTION OF THE CONCEALMENT OF PARTICULARS OR FURNISHING OF ASSESSEE BY SHRI B.V. JHAVERI REVENUE BY SHRI PREMANAND J. DATE OF HEARING 4.3.2015 DATE OF PRONOUNCEMENT 18 .03.2015 PREMLATA DEONATH KURMI 2 | P A G E INACCURATE PARTICULARS OF THE INCOME IN THE ASS ESSMENT ORDER U/S 143 (3). C. CONFIRMING THE ACTION OF THE LEARNED ASSESSING OFFICER WITHOUT APPRECIATING THE FACT THAT ASSESSEE HAS VOLUNTARILY PAID TAX DUE AND FILED REVISED RETURN OF INCOME MUCH PRIOR TO THE PRACTICAL START OF ASSESSMENT PROCEEDINGS. D. CONFIRMING THE ACTION OF THE LEARNED ASSESSING OFFICER WITHOUT APPRECIATING THE FACT THAT THE AMOUNT OF ASSESSED INCOME IS EXACTLY IDENTICAL TO THE RETURNED INCOME AS PER REVISED RETURN OF INCOME. E. CONFIRMING THE ACTION OF THE LEARNED ASSESSING OFFIC ER WITHOUT APPRECIATING THE FACT THAT THE CASE OF THE ASSESSEE WAS SELECTED FOR REGULAR ASSESSMENT UNDER CASS (COMPUTER ASSISTED SCRUTINY SELECTION) FOR VERIFICATION OF ANOTHER PROPERTY TRANSACTION. 2. THE ASSESSEE FILED ORIGINAL RETURN OF INCOME ON 30.0 1.2009 U/S 139(4) WHICH IS BELATED. THE ASSESSEE FILED REVISED RETURN ON 29.3.2010, WHEREBY THE ASSESSEE INCLUDED ADDITIONAL INCOME OF RS. 32,00,000/ - UNDER THE HEAD CAPITAL GAIN. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN THE ADDITIONAL INCOME OF RS. 32,00,000/ - . IN RESPONSE THE ASSESSEE SUBMITTED THAT IN DECEMBER 2005, THE ASSESSEE HAS PURCHASED TENANCY RIGHTS OF PREMISES NO. 205 AND 206, SOUTHVILLE, WODEHOUSE ROAD, COLABA, MUMBAI., FOR A TOTAL CONSIDE RATION OF RS. 50 LAKHS. THIS BUILDING WENT REDEVELOPMENT AND ASSESSEE HAS ENTERED INTO AGREEMENT FOR PERMANENT ALTERNATE ACCOMMODATION WITH THE DEVELOPER M/S SOUTHVILLE CONSULTANCY SERVICES PVT. LTD., WHEREIN SHE HAS AGREED TO PAY RS. 2.3 CRORE TO THE DEVELOPER FOR ALLOTMENT OF NEW PREMISES ON OWNERSHIP RIGHTS AND SURRENDERING HER TENANCY RIGHTS. THE ASSESSEE PAID RS. 78.25 LAKHS TO THE DEVELOPER AS PER THE TERMS OF THE AGREEMENT. ON APPROVAL OF PLANS, THE AREA TO BE ALLOTTED TO THE ASSESSEE REDUCED A ND, THEREFORE, THE DEVELOPER HAS REFUNDED RS. 18.75 LAKHS TO ASSESSEE IN SEPTEMBER 2006. SINCE THE REDEVELOPMENT WORK HAD NOT PROGRESSED TO THE SATISFACTION OF THE ASSESSEE, THEREFORE, THE ASSESSEE HAS CANCELLED THE PREMLATA DEONATH KURMI 3 | P A G E AGREEMENT WITH THE DEVELOPER AND GOT REFUND OF RS. 60 LAKHS PAID TO THE DEVELOPER AS PER AGREEMENT AND ALSO COMPENSATION OF RS. 8 2 LAKHS FOR HER RIGHTS. THUS THE ASSESSEE EXPLAINED THAT THIS AMOUNT OF RS. 32,00,000/ - BEING DIFFERENCE OF RS. 82 LAKHS COMPENSATION ( - ) RS. 50 LAKHS COST OF A CQUISITION OF TENANCY RIGHT WAS OFFERED AS SHORT TERM CAPITAL GAIN BY THE ASSESSEE IN THE REVISED RETURN OF INCOME. ASSESSING OFFICER WAS OF THE VIEW THAT THE ORIGINAL RETURN WAS FILED BELATEDLY AND, THEREFORE, THE REVISED RETURN CANNOT BE ALLOWED AND THE SAME IS TREATED AS INVALID. ACCORDINGLY, THE ASSESSING OFFICER FRAMED THE ASSESSMENT BY MAKING THE ADDITION OF RS. 32 LAKH AS OFFERED IN THE REVISED RETURN. SUBSEQUENTLY THE PENALTY PROCEEDINGS U/S 271(1)(C)WERE INITIATED AND THE ASSESSING OFFICER HAS LEV IED THE PENALTY OF RS. 10,87,680/ - BEING 100% OF THE TAX SOUGHT TO BE EVADED IN RESPECT OF RS. 32 LAKH BEING SHORT TERM CAPITAL GAIN. 3. THE ASSESSEE CHALLENGED THE LEVY OF PENALTY U/S 271(1)(C) BEFORE THE CIT(A) AND SUBMITTED THAT THE ASSESSEE ITSELF HAS OFFERED THE SAID INCOME OF RS. 32 LAKH AS SHORT TERM CAPITAL GAIN ARISING FROM SURRENDER OF TENANCY RIGHTS. THE ASSESSEE EXPLAINED THAT INITIALLY THE ASSESSEE WAS NOT CLEAR ABOUT THE SAID AMOUNT BEING A COMPENSATION OR A LOAN BY THE DEVELOPER. HOWEVER, SUBSEQUENTLY THE ASSESSEE HAS OFFERED THE SAID AMOUNT IN THE REVISED RETURN. THE CIT(A) FOUND THAT THE EXPLANATION OF THE ASSESSEE IS NOT BONAFIDE BUT RATHER THE ASSESSEE HAS DELIBERATELY NOT OFFERED THIS AMOUNT IN THE ORIGINAL RETURN OF INCOME. ACCORDING LY, THE CIT(A) HAS CONFIRMED THE LEVY OF PENALTY WHILE PASSING THE IMPUGNED ORDER. 4. BEFORE US, THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAS FILED THE REVISED RETURN U/S 139(5) ON PREMLATA DEONATH KURMI 4 | P A G E 29.3.2010 REVISING THE ORIGINAL RETURN OF INCOME BY INCLUDING ADDITIONAL INCOME OF RS. 32 LAKH UNDER THE HEAD CAPITAL GAIN ARISING ON ACCOUNT OF COMPENSATION RECEIVED FOR CANCELLATION OF BOOKING OF THE PREMISES. THE LD. AUTHORIZED REPRESENTATIVE HAS POINTED OUT THAT THIS INCOME OF RS. 3 2 LAKH BEING SHORT TERM CAPITAL GAIN WAS OFFERED BY THE ASSESSEE BEFORE THE INITIATION OF ASSESSMENT PROCEEDINGS BECAUSE THE ASSESSING OFFICER ISSUED THE NOTICE U/S 142(1) WITH QUESTIONNAIRE ON 11.10.2010 WHEREAS THE ASSESSEE FILED THE REVISED RETURN ON 2 9.3.2010. THUS THE INCOME WAS OFFERED IN THE REVISED RETURN BEFORE ANY ENQUIRY WAS INITIATED BY THE ASSESSING OFFICER. THE ASSESSEE FURNISHED THE EXPLANATION IN RESPECT OF THE CAPITAL GAIN VIDE LETTER DATED 24 - 12.2010 . THE ASSESSING OFFICER COM PLETED THE A SSESSMENT U/S 143(3) VIDE ORDER DATED 30.10.2010 ASSESSING THE TOTAL INCOME OF THE ASSESSEE AS PER THE INCOME OFFERED IN THE REVISED RETURN OF INCOME FILED ON 29.3.2010. THUS THE LD. AUTHORIZED REPRESENTATIVE HAS SUBMITTED THAT THERE IS NO ADDITION BY THE ASSESSING OFFICER OTHER THAN THE INCOME OFFERED BY THE ASSESSEE HERSELF. HE HAS FURTHER SUBMITTED THAT AT THE TIME OF FURNISHING THE REVISED RETURN, THE ASSESSEE PAID DUE TAX ALONG WITH THE INTEREST, THEREFORE, THE ASSESSEE HAS GAINED NOTHING BY OFFERING THIS AMOUNT IN THE REVISED RETURN INSTEAD OF THE ORIGINAL RETURN OF INCOME. THE ASSESSEE OFFERED THE INCOME ON HER OWN, THEREFORE, IT DOES NOT AMOUNT TO CONCEALMENT OF INCOME MERELY BECAUSE IT WAS NOT OFFERED IN THE ORIGINAL RETURN OF INCOME BUT WAS OFFERE D IN THE REVISED RETURN AFTER THE NOTICE U/S 143(2) BUT BEFORE THE NOTICE U/S 142(1). IN SUPPORT OF HIS CONTENTION HE HAS RELIED UPON THE DECISION OF DELHI BENCHES OF THIS TRIBUNAL IN THE CASE OF ACIT VS. ASHOK NATH RAJ 3 3 TAXMANN.COM 588, AND SUBMITTED THAT THE TRIBUNAL WHILE CONSIDERING AN IDENTICAL ISSUE HAS HELD THAT A NOTICE U/S 143(2) HAS ALREADY BEEN ISSUED AND ASSESSEE FILED REVISED RETURN OF INCOME, THEREFORE, DISCLOSING THE ADDITIONAL INCOME WHICH WAS NOT CORRECTLY SHOWN PREMLATA DEONATH KURMI 5 | P A G E IN THE ORI GINAL RETURN OF INCOME WOULD NOT TANTAMOUNT TO DETECTION OF CONCEALMENT OF INCOME U/S 271(1)(C) . THE TRIBUNAL HAS FURTHER HELD EVEN THOUGH THE REVISED RETURN WAS FOUND TO BE INVALID, THE ASSESSING OFFICER ACCEPTED THE INCOME AS DECLARED IN THE REVISED RETU RN AND COMPUTATION. THUS THE ASSESSING OFFICER DID NOT BRING ANY MATERIAL ON RECORD THAT THE DECLARATION OF INCOME MADE BY THE ASSESSEE IN HIS REVISED RETURN OR HIS EXPLANATION WAS NOT BONA FIDE . HE THEN RELIED UPON THE DECISION OF THIS TRIBUNAL DATED 7.01 .2015 IN THE CASE OF PREMA GOPAL RAO VS. DCIT IN ITA NO. 8653/MUM/2011 AND SUBMITTED THAT THE TRIBUNAL WHILE DEALING WITH AN IDENTICAL ISSUE HA S HELD THAT EVEN THOUGH THE ASSESSEE FILED THE REVISED RETURN AFTER THE RECEIPT OF NOTICE U/S 143(2) YET THE ADMITTED FACTS REMAINED THAT THE ASSESSING OFFICER DID NOT SEEK ANY TYPE OF PARTICULARS IN THAT NOTICE. HENCE THE MISTAKE IN THE LONG TERM CAPITAL G AIN CO U LD NOT HAVE COME TO THE NOTICE OF THE ASSESSING OFFICER AT THAT POINT OF TIME. IT WAS HELD THAT THE ASSESSEE HAS DECLARED THE HIGHER AMOUNT OF LONG TERM CAPITAL GAIN VOLUNTARILY UPON ITS DETECTION . THE LD. AUTHORIZED REPRESENTATIVE THEN RELIED UPON THE JUDGMENT OF HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS. SURESH CHANDRA MITTAL 241 ITR 124 (INDORE) AND SUBMITTED THAT IN THE SAID CASE THE ASSESSEE OFFERED THE INCOME ON PERSISTENT QUERY MADE BY THE ASSESSING OFFICER BUT ONCE THE REVISED ASSESSMENT WAS REGULARIZED BY THE REVENUE AND ONCE THE ASSESSING AUTHORITY HAS FAILED TO TAKE ANY OBJECTION IN THE MATTER, THE DECLARATION OF INCOME MADE BY THE ASSESSEE IN HIS REVISED RETURN AND HIS EXPLANATION THAT HE HAD DONE SO TO BUY PIECE WITH DEPART MENT AND TO COME OUT OF VEXED LITIGATION COULD BE TREATED AS BONA FIDE . THE LD. AUTHORIZED REPRESENTATIVE HAS SUBMITTED THAT THE SLP FILED BY THE DEPARTMENT WAS DISMISSED BY HON'BLE SUPREME COURT IN 259 ITR 9 (SC) . THUS THE LD. AUTHORIZED REPRESENTATIVE HAS SUBMITTED THAT THERE IS NO CONCEALMENT ON THE PART OF PREMLATA DEONATH KURMI 6 | P A G E THE ASSESSEE BUT BECAUSE OF THE BONAFIDE BELIEF THE ASSESSEE COULD NOT OFFER THIS AMOUNT IN THE ORIGINAL RETURN AS THE ASSESSEE WAS NOT SURE WHETHER THIS AMOUNT WILL BE IN THE NATURE OF COMPENSATION OR A LOAN EXTENDED BY THE DEVELOPER. THE LD. AUTHORIZED REPRESENTATIVE HAS THUS PLEADED THAT THE PENALTY LEVIED U/S 271(1)(C) MAY BE DELETED. 5. ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THAT THIS TRANSACTION OF SURRENDER OF TENANCY RIGHT WAS SHOWN IN THE ORIGINAL RETURN OF INCOME DESPITE THE FACT THAT THE ASSESSEE INFORMED HER CHARTERED ACCOUNTANT THAT SHE HAS CANCELLED THE AGREEMENT AND RECEIVED THE AMOUNT IN QUESTION. THE EXPLANATION OF THE ASSESSEE IS NOT BONAFIDE AND IT IS BEYOND THE IMAGINATION T HAT HOW THE ASSESSEE COULD HAVE RECEIVED A LOAN OF RS. 32 LAKH FROM THE DEVELOPER WHEN THERE IS NO SUCH TRANSACTION OR REQUEST BY THE ASSESSEE . I N THE RETURN FOR THE RELEVANT PREVIOUS YEAR, T HE ASSESSEE HAS SHOWN THE AMOUNT OF RS. 1.67 CRORE AS LIABILITY T OWARDS DEVELOPMENT RELATING TO BOOKING OF PREMISE, THEREFORE, THE ASSESSEES EXPLANATION THAT THIS AMOUNT OF RS. 32 LAKH WAS RECEIVED AS A LOAN FROM THE DEVELOPER IS BASELESS AND NOT BONAFIDE. IT IS CLEAR THAT THE ASSESSEE BY HER CHOICE AND DELIBERATE INT ENTION DID NOT OFFER THIS AMOUNT IN THE ORIGINAL RETURN OF INCOME AND CONCEALED THE PARTICULARS OF INCOME ATTRACTING THE PROVISIONS OF PENALTY U/S 271(1)(C) . HE HAS RELIED UPON THE ORDERS OF AUTHORITIES BELOW. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE THAT IN THE ORIGINAL RETURN FILED ON 13.01.2009, THE ASSESSEE HAS NOT OFFERED THIS AMOUNT OF RS. 32 LAKH RECEIVED FROM THE DEVELOPER ON ACCOUNT OF CANCELL ATION OF THE AGREEMENT OF BOOKING OF PREMISES. THE RETURN FILED BY THE ASSESSEE WAS TAKEN FOR PREMLATA DEONATH KURMI 7 | P A G E SCRUTINY ASSESSMENT AND THE ASSESSING OFFICER ISSUED NOTICE U/S 143(2) ON 11.09.2009 . THE ASSESSEE FILED THE REVISED RETURN OF INCOME ON 29.03.2010 AND OFFERED T HE ADDITIONAL INCOME OF RS. 32,00,000/ - UNDER THE HEAD CAPITAL GAIN BEING COMPENSATION RECEIVED ON ACCOUNT OF CANCELLATION OF BOOKING OF PREMISES. IT IS PERTINENT TO NOTE THAT THE ADDITIONAL INCOME OF RS. 32,00,000/ - WAS OFFERED BY THE ASSESSEE ON 29.3.201 0 BEFORE ANY ENQUIRY OR NOTICE U/S 142(1) ISSUED BY THE ASSESSING OFFICER. THE ASSESSING OFFICER ISSUED THE NOTICE U/S 142(1) WITH QUESTIONNAIRE ON 11 - 10 - 2010, THEREFORE, THE AMOUNT OF RS. 32,00,000/ - OFFERED BY THE ASSESSEE WAS NOT IN RESPONSE TO ANY QUER Y OF THE ASSESSING OFFICER OR AS A RESULT OF ANY ENQUIRY CONDUCTED BY THE ASSESSING OFFICER DETECTING ANY SUCH UNDISCLOSED INCOME. THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT U/S 143(3) BY COMPUTING THE TOTAL INCOME AS OFFERED BY THE ASSESSEE IN THE REVISED RETURN OF INCOME FILED ON 29.03.2010. THOUGH THE REVISED RETURN WAS NOT ACCEPTED BY THE ASSESSING OFFICER AND HELD TO BE INVALID , H OWEVER, THE FACT REMAINED THAT THE INCOME OFFERED IN THE REVISED RETURN WAS ASSESSED TO TAX BY THE ASSESSING OFFICER WHILE FRAMING THE ASSESSMENT U/S 143(3). THEREFORE, IT BORNE OUT FROM THE FACTS OF THE CASE THAT THE INCOME IN QUESTION WAS OFFERED BY THE ASSESSEE VOLUNTARILY AND ON HER OWN PRIOR TO ANY QUERY OR ENQUIRY CONDUCTED BY THE ASSESSING OFFICER AND HENCE THE ADDITIONAL INCOME OFFERED BY THE ASSESSEE WAS NOT AS A RESULT OF ANY DETECTION OF UNDISCLOSED INCOME BY THE ASSESSING OFFICER. THE ASSESSEE P AID THE DUE TAXES ALONG WITH INTEREST AT THE TIME OF FILING THE REVISED RETURN ON THIS ADDITIONAL INCOME OFFERED TO TAX. IN THE CASE OF ACIT VS. ASHOK NATH RAJ (SUPRA), THE DELHI BENCHES OF THIS TRIBUNAL WHILE DEALING WITH AN IDENTICAL ISSUE HAS HELD IN PA RA 18 AND 19 AS UNDER: - PREMLATA DEONATH KURMI 8 | P A G E 18. MERELY BECAUSE A NOTICE UNDER SECTION 143(2) HAD ALREADY BEEN ISSUED AND THE ASSESSEE FILED REVISED RETURN THEREAFTER, DISCLOSING ADDITIONAL INCOME TOWARDS CAPITAL GAINS, WHICH WAS NOT CORRECTLY SHOWN IN THE ORIGINAL RETURN, THAT WAS NOT TANTAMOUNT TO DETECTION OF CONCEALMENT OF INCOME UNDER SECTION 271(1)(C) OF THE ACT. THE HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT V. S.V. ELECTRICALS (P.) LTD. [2005] 274 ITR 334/[2006] 155 TAXMAN 158 AND THE HON'BLE JHARKHAND HIGH COURT IN CIT V. ASHIM KUMAR AGARWAL [2005] 275 ITR 48/[2006] 153 TAXMAN 226 HELD THAT WHERE THE ASSESSEE SURRENDERS HIS FULL INCOME, THOUGH AT A LATER STAGE, THERE WAS NO QUESTION OF ANY CONCEALMENT ON HIS PART AND CONSEQUENTLY, NO PENALTY UNDER SECTION 271(1)(C) WAS LEVIA BLE, AND THAT AN OMISSION FROM RETURN OF INCOME DID NOT AMOUNT TO CONCEALMENT. THE HON'BLE JURISDICTIONAL HIGH COURT WHILE ADJUDICATING THE ISSUE OF LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT IN THE CASE OF CIT V. HARNARAININ THEIR DECISION DATED O CTOBER 31, 2011 IN I.T.A. NO.2072 OF 2010 CONCLUDED THAT 'SURRENDER OF THE AMOUNT BY THE ASSESSEE AFTER RECEIPT OF THE QUESTIONNAIRE COULD NOT LEAD TO AN INFERENCE THAT IT WAS NOT VOLUNTARY, IN THE ABSENCE OF ANY MATERIAL ON RECORD TO SUGGEST THAT IT WAS B OGUS OR UNTRUE. IT IS FURTHER EVIDENT THAT THERE WAS NEITHER ANY DETECTION NOR ANY INFORMATION IN THE POSSESSION OF THE REVENUE WHICH MIGHT LEAD TO A CONCLUSION THAT THERE WAS A DETECTION BY THE REVENUE OF CONCEALMENT. ACCORDINGLY, THE QUESTION OF LAW FRAM ED IS ANSWERED AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE'. 19. IN THE INSTANT CASE, THE ASSESSEE VOLUNTARILY DISCLOSED ADDITIONAL INCOME DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND PAID TAX THEREON. IN THE LIGHT OF VIEW TAKEN IN THE AFORESAID D ECISIONS, IT CANNOT BE SAID IN THE CASE BEFORE US, ADDITIONAL INCOME DISCLOSED DURING THE COURSE OF ASSESSMENT PROCEEDINGS WAS NOT VOLUNTARY OR THAT THE ASSESSEE WANTED TO CONCEAL THE INCOME. EVEN THOUGH THE REVISED RETURN WAS FOUND TO BE INVALID, THE ASSE SSING OFFICER ACCEPTED THE INCOME AS DECLARED IN THE REVISED RETURN AND COMPUTATION. THE ASSESSING OFFICER DID NOT BRING ANY MATERIAL ON RECORD THAT THE DECLARATION OF INCOME MADE BY THE ASSESSEE IN HIS REVISED RETURN OR HIS EXPLANATION WAS NOT BONA FIDE. IN THESE CIRCUMSTANCES, THERE APPEARS TO BE NO BASIS FOR IMPOSITION OF PENALTY ON THE GROUND THAT THE ASSESSEE FURNISHED INACCURATE PARTICULARS OF INCOME. SINCE THE REVENUE HAVE NOT PLACED BEFORE US ANY MATERIAL NOR BROUGHT TO OUR NOTICE ANY CONTRARY DECIS ION SO AS TO ENABLE US TO TAKE A DIFFERENT VIEW IN THE MATTER, WE ARE NOT INCLINED TO INTERFERE. THEREFORE, GROUND NO. 1 IN THE APPEAL IS DISMISSED. 7. IN THE SAID CASE, THE TRIBUNAL FOUND THAT THOUGH THE REVISED RETURN WAS FOUND TO BE INVALID, THE ASSESSING OFFICER ACCEPTED THE INCOME IN THE REVISED RETURN AND COMPUTATION, THE FACTS OF THE CASE BEFORE THE DELHI BENCHES OF THIS TRIBUNAL WERE IDENTICAL TO THE CASE IN HAND. SIMILARLY IN THE PREMLATA DEONATH KURMI 9 | P A G E CASE OF MS. PREMA GOPAL RAO VS. DCIT (SUPRA), THE CO - ORDINATE BENCH OF THIS TRIBUNAL WHILE FOLLOWING THE DECISION OF DELHI BENCHES IN CASE OF ACIT VS. ASHOK NATH RAJ (SUPRA), HAS HELD IN PARA 4 AND 5 AS UNDER: - 4. WE H AVE GONE THROUGH THE ORDER PASSED BY DELHI BENCH OF TRIBUNAL REFERRED SUPRA. WE NOTICE THAT THE ASSESSEE THEREIN HAD FILED REVISED RETURN OF INCOME BEYOND THE TIME PRESCRIBED U/S 139(5) BY ENHANCING THE LONG TERM CAPITAL GAIN, AFTER THE RECEIPT OF NOTICE U /S 143(2) OF THE ACT. EVEN THOUGH THE REVISED RETURN WAS INVALID, THE AO COMPLETED THE ASSESSMENT BY ACCEPTING THE INCOME DECLARED IN THE REVISED RETURN. UNDER THESE SET OF FACTS, THE TRIBUNAL HAD HELD THAT THE ADDITIONAL AMOUNT OF CAPITAL GAIN DISCLOSED I N THE REVISED RETURN DID NOT TANTAMOUNT TO DETECTION OF CONCEALMENT OF INCOME U/S 271(1)(C) OF THE ACT. 5. IN THE INSTANT CASE, THE REVISED RETURN OF INCOME WAS FILED WITHIN THE TIME PRESCRIBED U/S 139(5) OF THE ACT. EVEN THOUGH THE ASSESSED FILED THE REVI SED RETURN OF INCOME AFTER THE RECEIPT OF NOTICE U/S 143(2) OF THE ACT, YET THE ADMITTED FACT REMAINS THAT THE ASSESSING OFFICER DID NOT SEEK ANY TYPE OF PARTICULARS IN THAT NOTICE. HENCE THE MISTAKE IN THE LONG TERM CAPITAL GAIN COULD NOT HAVE COME TO THE NOTICE OF THE AO AT THAT POINT OF TIME, MEANING THEREBY, IT SHOULD BE CONSTRUED THAT THE ASSESSEE HAS DECLARED THE HIGHER AMOUNT OF LONG TERM CAPITAL GAIN VOLUNTARILY UPON ITS DETECTION. HENCE, WE ARE UNABLE TO AGREE WITH THE VIEW OF THE TAX AUTHORITIES T HAT THE REVISED RETURN OF INCOME WAS NOT VOLUNTARY ONE, BUT THE ASSESSEE WAS CONSTRAINED TO ENHANCE THE LONG TERM CAPITAL GAIN ONLY UPON THE RECEIPT OF NOTICE U/S 143(2) OF THE ACT. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD CIT(A) ON THIS ISSUE AND DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY LEVIED ON THE ENHANCED CAPITAL GAIN AMOUNT. 8. THE TRIBUNAL AGAIN WHILE DEALING WITH AN IDENTICAL ISSUE AND ON IDENTICAL FACTS HAVE HELD THAT WHEN THE ASSESSEE HAS RECTIFIED ITS MISTAKE IN OFFERING THE CAPITAL GAIN BY FILING THE REVISED RETURN THE PENALTY U/S 271(1)(C) IS NOT WARRANTED. IN THE CASE OF CIT VS. SURESH CHANDRA MITTAL (SUPRA), THE HON'BLE HIGH M.P. COURT HAS OBSERVED AS UNDER: - IN THE INSTANT CASE, THOUGH IT WAS TRUE THAT THE ASSESSEE HAD NOT SURR ENDERED AT ALL AND THAT HE HAD DONE SO ON THE PERSISTENT QUERIES MADE BY THE ASSESSING OFFICER, BUT ONCE THE REVISED ASSESSMENT WAS REGULARISED BY THE REVENUE AND ONCE THE ASSESSING AUTHORITY HAD FAILED TO TAKE ANY OBJECTION IN THE MATTER, THE DECLARATION OF INCOME MADE BY THE PREMLATA DEONATH KURMI 10 | P A G E ASSESSEE IN HIS REVISED RETURNS AND HIS EXPLANATION THAT HE HAD DONE SO TO BUY PEACE WITH THE DEPARTMENT AND TO COME OUT OF VEXED LITIGATION COULD BE TREATED AS BONA FIDE. THEREFORE, THE TRIBUNAL WAS JUSTIFIED IN CANCELLING THE PENALT Y LEVIED BY THE ASSESSING OFFICER AND AFFIRMED BY THE COMMISSIONER OF INCOME TAX (APPEALS) IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THIS REFERENCE IS ACCORDINGLY ANSWERED IN THE AFFIRMATIVE HOLDING THAT THE TRIBUNAL WAS JUSTIFIED IN DOING SO. 9. AS IT IS CLEAR FROM THE FINDING OF THE HON'BLE HIGH COURT OF MADHYA PRADESH THAT IN THE SAID CASE, THE ASSESSEE DID NOT SURRENDER AT ALL AND HAD DONE SO ON PERSISTENT QUERY MADE BY THE ASSESSING OFFICER BUT ONCE THE REVISED ASSESSMENT WAS REGULARIZED BY T HE REVENUE AND THE ASSESSING AUTHORITY HAS ACCEPTED THE ADDITION AL INCOME OFFERED BY THE ASSESSEE THE PENALTY WAS HELD TO BE NOT JUSTIFIED. THE SLP FILED BY THE REVENUE AGAINST THE JUDGMENT OF HONBLE MADHYA PRADESH HIGH COURT WAS DISMISSED BY THE HON'BLE SUPREME COURT IN 251 ITR 09. BY FOLLOWING THE ABOVE DECISIONS, WE ARE OF THE VIEW THAT WHEN THE ASSESSEE HAS OFFERED THE ADDITIONAL INCOME PRIOR TO ANY ENQUIRY OR INVESTIGATION MADE BY THE ASSESSING OFFICER THEN THE LEVY OF PENALTY U/S 271(1)(C) ON THE IN COME WHICH HAS BEEN OFFERED BY THE ASSESSEE VOLUNTARILY IS NOT WARRANTED. HENCE THE PENALTY LEVIED IS DELETED. 10 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE ALLOWED. ORDER PRONOUCNED IN THE OPEN COURT ON THIS 1 8 T H DAY OF MARCH 2015 VKNS'K DH ?KKS'K.KK [KQYS U;K;KY; ES FNUKAD 1 8 T H EKPZ 2015 DKS DH XBZA S D / - S D / - ( RAJENDRA ) (VIJAY PAL RAO) ( ACCOUNTANT MEMBER / YS[KK LNL; ) (JUDICIAL MEMBER/ U;KF;D LNL; ) MUMBAI DATED .03.2015 SKS SR. P.S, PREMLATA DEONATH KURMI 11 | P A G E COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, C BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI